dissenting.
I dissent. On January 24, 1977, this Court announced its opinion and judgment in these cases, declaring unconstitutional Section 3 of Chapter 462 of the Public Acts of 1974, which mandated punishment by death for the crime of murder in the first degree, vacating the death sentences of defendants Collins and Morgan and remanding their cases to the trial courts for new trials limited to the ascertainment of proper punishment by a jury and the imposition of new sentences by the trial judge, such sentences to be from 20 years to life imprisonment, as provided by the appropriate statutes.
Thereafter, the State filed a petition to rehear asserting that after this Court had vacated the death sentences in these causes, the Governor “commuted” the sentences from death by electrocution to imprisonment for life. Now, in response to the petition to rehear, the majority of the Court is reversing our original determination that defendants Collins and Morgan were entitled to have their punishment assessed by a jury and new sentences imposed by the trial courts and, instead, is affirming the respective judgments of the trial courts “as commuted to life imprisonment.” In my opinion, this reversal deprives the defendants of valuable rights to have their punishment determined by the courts.
I
I deem it appropriate and advisable to’ spell out the reasons underlying our original determination that this Court did not have *653lawful authority following the vacation of the death sentences imposed upon the defendants to determine appropriate punishment for the defendants, but, instead, was required by the law of this State to remand their cases to the trial court for a determination of appropriate punishment and new sentences by the jury and trial judge.
There is precedent in Tennessee for adjustment of a sentence at the appellate level under certain limited circumstances. In Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900 (1944), a conviction for grand larceny was set aside for failure of the State to prove the value of the property taken. It was, nevertheless, clear from the verdict that the jury believed the State’s proof of the elements of petit larceny. Rather than ordering a new trial, the Court imposed the minimum sentence for petit larceny and gave the State the option of accepting the reduced sentence or retrying the defendant to seek a higher penalty. See also Forsha v. State, 183 Tenn. 604, 194 S.W.2d 463 (1946).
The case of Beaver v. State, 475 S.W.2d 557 (Tenn.Cr.App.1971) posed a different, but related, problem. Veniremen who expressed conscientious objections to capital punishment were excluded from the jury in violation of the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The Court of Criminal Appeals held that the error did not vitiate the verdict of guilt but affected only the validity of the death sentence imposed. Accordingly, the sentence was reduced to the minimum punishment of confinement in the penitentiary for twenty years and one day, subject to acceptance by the State.
There is, however, no Tennessee authority for reducing a sentence to the maximum penalty authorized by statute. To the contrary, the rule, without exception, has been that if the punishment fixed by the verdict is either below the minimum or above the maximum penalty prescribed by statute, there is no remedy but to reverse and remand for a new trial, McDougal v. State, 64 Tenn. 660 (1875); Cowan v. State, 117 Tenn. 247, 96 S.W. 973 (1906); Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768 (1967); Corlew v. State, supra ; on the issue of guilt as well as punishment, Gohlston v. State, 143 Tenn. 126, 223 S.W. 839 (1920). This is true even in misdemeanor eases, if the defendant has demanded that the jury fix the punishment. Van Pelt v. State, 193 Tenn. 436, 246 S.W.2d 87 (1952); Aldridge v. State, 4 Tenn.Cr.App. 254, 470 S.W.2d 42 (1971).
Since the death penalty statutes of 1973 and 1974 have been held invalid, § 10772 of the Code of 1932, without its capital sentencing provision, is “revived.” State v. Dixon, 530 S.W.2d 73 (Tenn.1975). Therefore, murder in the first degree may be punished by any term in the penitentiary greater than twenty years. In Hunter v. State, 496 S.W.2d 900 (Tenn.1972), this Court held that precisely because a variety of punishments is available, this Court may not itself correct the sentence but must remand for sentencing by a jury. Although the defendant does not have a constitutional right to have the jury determine punishment, he does have a statutory right to that effect. Gohlston v. State, supra. So does the State. T.C.A. § 39-2406; Corlew v. State, supra; State v. Odom, 200 Tenn. 231, 292 S.W.2d 23 (1956); T.C.A. § 40-2707; West v. State, 140 Tenn. 358, 204 S.W. 994 (1918), dealing with former law. In Gohl-ston, the Court said that the “Act clearly vests the power to fix the punishment in such cases in the jury” which has the “exclusive power and authority to fix the punishment of the defendants in cases where they have been convicted of murder in the first degree, and [jury sentencing] is mandatory”. 143 Tenn. at 132, 223 S.W. at 840.
In the Corlew case, supra, the Court relied on the obvious proposition that the defendant cannot complain that he is deprived of any rights when he has been found guilty by a jury and receives the least severe sentence a jury could have imposed, observing cautiously that “the rule should never be applied unless it is plain, beyond question, that the action taken is for the benefit of the defendant . . . .” 180 S.W.2d at 902. In the cases at bar, it is sheer speculation to conclude that the jury *654which imposed the death penalty would have chosen life imprisonment had the death penalty been unavailable at the time of trial.
It appears to me that the premise of such a speculation is not correct. The law by which these cases were tried and the jurors instructed did not give the jurors any power to' withhold the death penalty except by violating their oaths and refusing to return a verdict of first degree murder even though they believed the State’s proof. It is for that reason that it is unconstitutional under the decision of the U.S. Supreme Court in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).
It is true that some other courts of last resort, having found their particular death penalty statutes to be unconstitutional, have imposed sentences of life imprisonment at the appellate level. Swain v. State, 290 Ala. 123, 274 So.2d 305 (1973); Anderson v. State, 528 P.2d 1023 (Nev. 1974). But, they were administering statutes quite different from ours. That would appear to be a proper action if life imprisonment were the only alternative to capital punishment, as is true in Nevada, where the Anderson case arose. N.R.S. 200.030.
The Swain case was decided under a statute similar to the “revived” Tennessee statute. The Alabama court could not remand for a new trial on the issue of punishment because there was no statutory authority for bifurcated trials, and it was feared that the administrative problems for the trial court would prove unmanageable. This has not been regarded as a problem in Tennessee. See Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738 (1956); Hunter v. State, 496 S.W.2d 900 (Tenn.1972). But the crucial distinction between the cases at bar and Swain is that there the jury had a choice and selected the penalty of death, whereas, in these cases the jury had no option. Since it elected the harshest punishment available, the court in Swain felt warranted in selecting the next most severe valid penalty after the death penalty was declared unconstitutional. In the cases at bar, the jury simply found the defendant guilty of first degree murder upon the evidence; the punishment followed automatically.
Bowen v. State, 488 S.W.2d 373 (Tenn.1972) is relied upon for its dictum suggesting that this Court has power to follow the Alabama precedent. But, Bowen is bad dictum because the same consideration that distinguishes Swain distinguishes Bowen, namely, that the jury selected the punishment as it was required to do under the law in effect prior to 1973.
Considering the foregoing authorities, I was convinced when we pronounced our original decision that these cases must be remanded for resentencing hearings so that the jury and trial judge may fix a lawful punishment “at imprisonment in the penitentiary for life, or for some period over twenty years.” T.C.A., § 39-2406. I adhere to that conclusion.
II
The reason given by the majority for granting the petition to rehear and reversing the original judgment of this Court is that the Governor has since intervened and “commuted” the punishment of the defendants from death by electrocution to life imprisonment. The majority considers these “commutations” to be valid exercises of the executive power and, thus, effective to fix the punishment of the defendants at life imprisonment. I cannot agree. In my view, the Governor’s actions were premature and unauthorized by law, and constitute an unwarranted interference with the judicial process.
The power of the Governor is granted by Art. Ill, Sec. 6, Constitution of Tennessee,1 as follows:
“He shall have power to grant reprieves and pardons, after conviction, except in cases of impeachment.” ⅛
*655No power to grant commutations of sentences is expressly mentioned, but it has long been recognized that such power is to be implied from the grant of the greater power ⅛ pardon. See 67 C.J.S. Pardons § 15(2), p. 584.
A pardon is an executive act of grace which exempts a person from the punishment the law inflicts for a crime he has committed; a commutation of sentence is the reduction of a lawful punishment to which a person has been condemned to a less severe lawful punishment. People v. Frost, 133 App.Div. 179, 117 N.Y.S. 524 (1909).
The difficulty with the “commutations” in these cases, in my view, is that they were prematurely issued and are given an effect not intended by the drafters of our Constitution. It is my firm opinion that no executive act of clemency, whether it be a pardon, reprieve or commutation, can be given the effect of depriving the defendant of a vested legal right; in these cases, the right to have a jury and trial judge determine the term of imprisonment which, possibly, could be as short as twenty years. Nevertheless, such is the effect of these “commutations” as approved by the majority. On January 27,1977, the defendants had the right to go before a jury and argue that their punishment be fixed at no more than twenty years imprisonment; on January 28, 1977, they were deprived of that right by the Governor and by him sentenced to imprisonment for life. In my view, such a result is not authorized by Art. Ill, Sec. 6, Constitution of Tennessee, or by any other law. Moreover, such action is, in my view, in plain violation of Art. I, Sec. 8, Constitution of Tennessee, which mandates that:
“No man shall be taken or imprisoned but by the judgment of his peers or the law of the land.”
This provision of our fundamental law guarantees that both guilt and punishment must be determined by the courts, not the Governor. The Governor has no power to impose sentence; he has power only to diminish the punishment provided by a sentence imposed by the courts.
The power to commute a sentence can never properly be exercised until after the judgment of the courts has become final; until that time there is no sentence to be commuted. Any “commutation” before that time necessarily is an impermissible interference with the judicial process.
A pardon may be granted at any time after conviction and, even when granted before the judgment of the courts is final, does not unlawfully interfere with the judicial process. This is so because the pardon lawfully obliterates both guilt and punishment, without depriving the defendant of any vested right, but a commutation is different.
The majority cites as authority for its action Rose v. Hodges, 423 U.S. 19, 96 S.Ct. 175, 46 L.Ed.2d 162 (1975); Bowen v. State, supra; and Hodges v. State, 491 S.W.2d 624 (Tenn.Cr.App.1972). In my opinion, Rose is not in point, but I agree that Bowen and Hodges are apposite; so are Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972) and Stanley v. State, 490 S.W.2d 828 (Tex.Cr.App.1972). See also State v. Hill, 279 N.C. 371, 183 S.E.2d 97 (1971).
Although apposite, I cannot follow the decisions in Bowen, Whan and Stanley because they sanction what I consider to be a perversion of the power to commute a sentence. What kind of “commutation” is it that fixes the punishment at the maximum permitted by law, that is fervently advocated by the prosecution and just as vigorously opposed by the defendant, that interferes with the judicial process before it is finished and deprives a defendant of his legal right to go before a jury and seek a sentence less than that fixed in the “commutation”? Surely, the power to “grant reprieves and pardons, after conviction, . ” does not contemplate such “clemency.” I cannot follow precedent which would lead me to deprive a defendant of his statutory and constitutional rights.
It is true that the situation in Hodges v. State, supra, was virtually identical to that in the cases at bar insofar as the question of “commutation” is concerned. Subsequent to the Supreme Court’s decision in Furman *656v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Court of Criminal Appeals held that the death penalty statute was unconstitutional and remanded the case to the trial court for determination of a lawful punishment. Upon a petition to rehear, the court took notice of the Governor’s subsequent “commutation” of the prisoner’s sentence from death to 99 years’ imprisonment. Noting that this Court had upheld the validity of a “similar” commutation in Bowen v. State, supra, and had “decreed the exercise of the power of commutation by the Governor to be valid and a proper exercise of executive authority”, 491 S.W.2d at 629, the Court of Criminal Appeals modified its original judgment “in compliance with the executive order of commutation as entered.”
Subsequent to the Court of Criminal Appeals’ decision in Hodges, the prisoners affected by the court’s decision petitioned for habeas corpus in a federal district court asserting that their federal constitutional rights were violated by the Governor’s commutation of their death sentences to 99 years’ imprisonment. After dismissal by the district court, the Court of Appeals for the Sixth Circuit held that since the death sentences were vacated at the time of the Governor’s commutation order, “There were . no viable death sentences to commute” and, thus, that the rights of the prisoners under the U.S. Constitution were violated by the “commutations.” Rose v. Hodges, supra, 96 S.Ct. at 176. The Supreme Court held only that the Governor’s commutation whether or not valid under state law, did not violate the U. S. Constitution:
“Whether or not the sentence imposed upon respondents was subject to commutation by the governor, and the extent of his authority under the circumstances of this case, are questions of Tennessee law which were resolved in favor of sustaining the action of the governor by the Tennessee Court of Criminal Appeals in Hodges v. State, supra. It was not the province of a federal habeas court to reexamine these questions. * * * If Tennessee chooses to allow the governor to reduce a death penalty to a term of years without resort to further judicial proceedings, the United States Constitution affords no impediment to that choice.” Rose v. Hodges, supra, 96 S.Ct. at 177.
The limited holding of the majority in Rose was substantially weakened by the dissenting opinion of Justice Brennan (with whom Justice Marshall joined) who stated:
“I find troublesome the question whether (since there existed no viable death sentences to commute) the Governor’s action should be treated as imposing the 99-year sentences without affording respondents constitutionally secured safeguards required when sentences are imposed. If the Governor had not acted, resentencing would have been by a jury at a proceeding highlighted by the usual safeguards, none of which applied to the Governor’s actions. The question is plainly not insubstantial; in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), we held that constitutional safeguards (there the right to counsel) applied to the sentencing stage. Was the commutation in this case actually the sentencing stage since no death sentence existed to commute when the Governor acted? Also, the due process dimensions of the right to present evidence relevant to sentencing was left open in McGautha v. California, 402 U.S. 183, 218-20, 91 S.Ct. 1454, 1473, 28 L.Ed.2d 711 (1971). If respondents were “sentenced” by the Governor, were they denied due process when not afforded that opportunity, even assuming that the Federal Constitution permits States to adopt executive in preference to judicial sentencing? I agree that the Constitution allows Tennessee to empower the Governor to reduce a death penalty to a term of years without resort to judicial proceedings. But the Court’s disposition assumes, without any in-depth analysis', that the instant case involves such “commutations” despite the fact that respondents’ death sentences were voided and were therefore non-existent when the Governor acted.” 96 S.Ct. at 179.
*657I note that on this issue my views are shared not only by the eminent judges of the U.S. Court of Appeals of the Sixth Circuit, but also by Presiding Justice Onion of the Texas Court of Criminal Appeals, who filed scholarly dissenting opinions in Whan and Stanley, and by Justice Lake of the Supreme Court of North Carolina, who dissented in State v. Hill, supra. See also Mears v. Nevada, 367 F.Supp. 84, 85 (D.C. 1973). (“Commutation is not ... a tool for resentencing prisoners whose sentences have been vacated.”) In Stanley, Presiding Justice Onion, in dissent, said:
“While the cases here involved were pending before this court, the Governor acted to commute the death sentences no longer in existence to life sentences in each case. * * * In the instant cases there were no acts of clemency involved in the ‘commutation’ since there was no substitution of a lesser penalty for a greater valid punishment. The ‘commutation’ merely imposed the highest possible penalty to which the appellants are now subject. The cases which hold that commutation may be accomplished without consent involved a higher valid penalty and further the cases do not consider the requirements of due process.” 490 S.W.2d at 831, 833.
The “commutations” in these cases did not save the defendants from the electric chair, the defendants had already been spared that fate by the judgment of this Court. Therefore, the apparent intent, and certainly the real effect, of these “commutations” was to insure that the defendants would not have their punishment fixed by a jury, possibly at twenty years imprisonment, but would receive the maximum punishment allowed by law. I agree that the defendants are deserving of that punishment, but neither this Court nor the Governor has the authority to impose that punishment; under our Constitution and laws, only the jury and trial judge are authorized to do so.
Therefore, I would overrule the petition to rehear and adhere to our original judgment. I am authorized to state that Chief Justice COOPER joins in this dissenting opinion.
COOPER, C. J., concurs in this opinion.
. T.C.A., §§ 40-3501 — 40-3508, which purport to provide for commutation in certain instances not applicable to these cases.